The importance of choosing a good lawyer - the nightmare never ends .

[doomed]

Some of you may recall my story - my lawyer is horrible and we walked into our meeting of creditors and got slaughtered. We filed in August and we are still suffering. Immediate relief, MY BUTT.

Got a letter from our trustee today saying we still owe the estate over $1300 and a car worth $12,000. Our lawyer in January was supposed to amend our schedules. We have been unable to reach him by phone or email since then. We ran into him in the grocery store once and he said to call him the next day. He wouldn't answer his phone and his voicemail was full.

So the trustee says we owe him $1300, he doesn't have our paystubs from prior to filing which we gave our attorney prior to filing, he also wants our first paystubs AFTER the date of filing (has anyone even heard of this?!), and he wants our car.

We went into what should have been a no asset case and have been wiped clean and left bloody and ragged.

Does anyone know if you can sue your bankruptcy attorney? And if so, does the proceeds go to your trustee if you win? It would almost be worth making the trustee even richer to have my lawyer pay.

[HHM]

First pay stubs after filing, that is okay, the trustee is trolling for money that was "earned" prior to filing date.

If you were to sue the BK attorney, yes, the proceeds would, most likely, go to trustee unless your state has such an exemption. However, I must caution, it is rare to successfully sue a BK attorney for malpractice and damages. (it would take too much to explain why, but in short, the success of BK is more determined by your individual circumstances than what your lawyer may or may not have done...but that is a different discussion).

What exactly is the issue...are these assets supposedly exempt and the exemptions weren't claimed, or is it something else?

[despritfreya]

Did the Trustee reopen the case? If I recall correctly it had been closed and I was unsure if you could reopen and then amend to maximize the exemptions to protect the vehicle that was free and clear due to the creditor's release of the lien. I was also unsure if you could amend if the Trustee did the reopening.

Des.

[doomed]

We have to re-open it to include the vehicle as it wasn't an asset before. It hasn't been done yet - my lawyer won't return our calls or emails, answer his phone, nothing.

HHM, are you saying because of how the bankruptcy benefited us (discharge of debts) the lawyer royally screwing it up won't matter? It wouldn't be hard to prove what he did - heck we only need the trustees video of our 341 meeting. My husband went to his office that afternoon and our lawyer had nothing to say about what happened, told my husband he has malpractice insurance.....

The issue with the car is, apparently there was no lien on it (the bank screwed up when I refinanced . . rather than putting a lien on the title, they released it completely). So, a couple of months after we filed, I called them to ask when they would pick it up and that's when I found out. This was December. Let my attorney know right away and nothing was done until 2 weeks ago - when I finally just told the trustee myself.

As for the other assets - we lost anywhere from $5,000-$7,000 that was supposed to be exempt. Our lawyer told us we would file using federal exemptions as the place we lived previously allowed them and we hadn't been here long enough to file. However, our trustee told us at the 341 that we couldn't use those exemptions either and had to use the ones from the place we lived before the state that allowed federal exemptions.

[AngelinaCat]

Dear doomed: I am so sorry to read of all this. Your attorney sound like he/she is related to ours. We actually tried to officially fire ours, only to be told at the hearing that for all intents and purposes, our case was done and just to leave it alone.

'Hub and I will review your posts tomorrow and see what, if anything, we can offer you...

[HHM]

The car is a tough issue. That does sometimes happen and unfortunately, there is not a whole lot you can do about it. If the bank did not perfect its lien and if there is not enough exemption to cover the equity, you lost the car, as does the bank. Even if the attorney recognized it, whether anything could have been done about it is Dependant on state law. For example, in CO, statute provides only a certain amount of time (I think 30 days) for a lien holder to perfect the lien by filing a liened title. If the lender does not do so within that time frame, the lien is void. As such, even if an attorney caught the problem, there is no way to fix it (Short of selling the car).

However, as for messing up the exemptions, that is a problem. You can certainly report your attorney to the state bar association. I suppose you could try to file a claim against the attorneys malpractice insurance carrier.

[doomed]

The car is a tough issue. That does sometimes happen and unfortunately, there is not a whole lot you can do about it. If the bank did not perfect its lien and there if there is not enough exemption to cover the equity, you lost the car, as does the bank.

However, as for messing up the exemptions, that is a problem. You can certainly report your attorney to the state bar association. I suppose you could try to file a claim against the attorneys malpractice insurance carrier.

That's what we figured, based on the attorney just out right making the statement about his insurance to my husband. It would go to the trustee but it may be worth it anyway.

[HHM]

But, this is why it is so tough to really show harm by the attorney, especially when the issue is related to assets. Here is the rub. If the assets are non-exempt, they are non-exempt. So even if an attorney recognized that, you still had a problem, you still had non-exempt assets. Granted, had you known, "maybe" some pre-planning could have been done to get you "some" benefit. But to actually get damages from the attorney, you would need to show that you are somehow worse off now, that you would not have filed BK but for the attorney's mistake. That is hard to prove except in the exceptional case where the lost of assets pays 100% of debt. But if that is not the case, the loss of non-exempt assets combined with a successful discharge puts you in a better position than if you did nothing. Plus, most attorneys can claim that they were hired to do a BK, not asset plan, so again, in a lost asset scenario, it is usually fruitless to bring a claim.

[doomed]

But, this is why it is so tough to really show harm by the attorney, especially when the issue is related to assets. Here is the rub. If the assets are non-exempt, they are non-exempt. So even if an attorney recognized that, you still had a problem, you still had non-exempt assets. Granted, had you known, "maybe" some pre-planning could have been done to get you "some" benefit. But to actually get damages from the attorney, you would need to show that you are somehow worse off now, that you would not have filed BK but for the attorney's mistake. That is hard to prove except in the exceptional case where the lost of assets pays 100% of debt. But if that is not the case, the loss of non-exempt assets combined with a successful discharge puts you in a better position than if you did nothing. Plus, most attorneys can claim that they were hired to do a BK, not asset plan, so again, in a lost asset scenario, it is usually fruitless to bring a claim.

According to what we were told by our attorney, our assets WERE exempt due to being able to use federal exemptions. A year ago I was told I need over $3,000 worth of dental work. I could of used that money to do it and it would of been "ok" within the bankruptcy. Now I still need $3,000 worth of dental work and have no money to do it. It's a shame that just because our debts were wiped out, that makes it okay for our attorney to have done a piss poor job. So really, there is NO standard for bankruptcy attorneys is there? They can do a crappy job, completely mess up all aspects of your bankruptcy, and then get away with it? Seems unreasonable.

[AngelinaCatHub]

Dear doomed: I am so sorry to read of all this. Your attorney sound like he/she is related to ours. We actually tried to officially fire ours, only to be told at the hearing that for all intents and purposes, our case was done and just to leave it alone.

'Hub and I will review your posts tomorrow and see what, if anything, we can offer you...

As Mrs. said, you cannot just fire your lawyer. We as we learned right before discharge made a Motion to go pro se. This caused both the Trustee and our lawyer to appear at the hearing. It cost my crappy lawyer a days worth of business and time. The Judge was kind and simply told us that it would hold up our discharge for no real good reason as we were done for all practical purposes but if we wished, he would approve the Motion to pro se, but advised against it for our own benefit. We agreed to have the Judge deny the Motion but it was a good feeling at least to have cost the lawyer a day as well as publicize her incompetence. She was not a happy camper. I am sure her peers who many were present got a chuckle out of our attempt.

'Hub

[tobee43]

According to what we were told by our attorney, our assets WERE exempt due to being able to use federal exemptions. A year ago I was told I need over $3,000 worth of dental work. I could of used that money to do it and it would of been "ok" within the bankruptcy. Now I still need $3,000 worth of dental work and have no money to do it. It's a shame that just because our debts were wiped out, that makes it okay for our attorney to have done a piss poor job. So really, there is NO standard for bankruptcy attorneys is there? They can do a crappy job, completely mess up all aspects of your bankruptcy, and then get away with it? Seems unreasonable.

doomed, not that i have much to add, because i really don't want to bash your atty, however, i just feel so badly for you.

there are some really excellent atty's out there, and much of the problem is that many atty's just began to add bk's to their repatra of services due to the lack of other business that dropped off. i know our atty perpared us for it to be possible that we may have to buy back our car. (however, due to a wild card exemption we qualified for, we did not have to buy back any part of it). but, the point was, he was right up front with all the possible situations) that can arise while going through this.

i'm just sorry you have to go through this. assets 7's since so stressful for many, it's almost like you feel like you are under someones micoscope and just can't shake it. but here's the good news...it will be over, time really does heal all wounds...that with a bit of money, and you may want to document your feelings directly to the firm, and maybe to your local bar assoc. if nothing else, it may help you to move forward.

best of luck to you...and this will pass..it will!

[HHM]

I am not trying to apologize for your attorney, but I am trying to help you see the bigger picture. I know you are upset and angry, but in the grand scheme of things, there is nothing that can really be done about it, so continuing to focus on it and spend energy on it is wasteful. If you got your discharge, be thankful. In a few months, to a year, none of what happened with regard to the mess up in your BK will matter.

[doomed]

I am not trying to apologize for your attorney, but I am trying to help you see the bigger picture. I know you are upset and angry, but in the grand scheme of things, there is nothing that can really be done about it, so continuing to focus on it and spend energy on it is wasteful. If you got your discharge, be thankful. In a few months, to a year, none of what happened with regard to the mess up in your BK will matter.

I agree, however - me being able to get a discharge was never in question - I met the guidelines. I could of screwed this all up less and saved myself the $1500 fee and still got the discharge.

[doomed]

As Mrs. said, you cannot just fire your lawyer. We as we learned right before discharge made a Motion to go pro se. This caused both the Trustee and our lawyer to appear at the hearing. It cost my crappy lawyer a days worth of business and time. The Judge was kind and simply told us that it would hold up our discharge for no real good reason as we were done for all practical purposes but if we wished, he would approve the Motion to pro se, but advised against it for our own benefit. We agreed to have the Judge deny the Motion but it was a good feeling at least to have cost the lawyer a day as well as publicize her incompetence. She was not a happy camper. I am sure her peers who many were present got a chuckle out of our attempt.

'Hub

You can't fire your lawyer - but what if he wont answer you? It's been 4 months now since we heard from him - he won't return our calls, our emails, nothing. I had to contact the trustee directly about my car.

[doomed]

doomed, not that i have much to add, because i really don't want to bash your atty, however, i just feel so badly for you.

there are some really excellent atty's out there, and much of the problem is that many atty's just began to add bk's to their repatra of services due to the lack of other business that dropped off. i know our atty perpared us for it to be possible that we may have to buy back our car. (however, due to a wild card exemption we qualified for, we did not have to buy back any part of it). but, the point was, he was right up front with all the possible situations) that can arise while going through this.

i'm just sorry you have to go through this. assets 7's since so stressful for many, it's almost like you feel like you are under someones micoscope and just can't shake it. but here's the good news...it will be over, time really does heal all wounds...that with a bit of money, and you may want to document your feelings directly to the firm, and maybe to your local bar assoc. if nothing else, it may help you to move forward.

best of luck to you...and this will pass..it will!

Our lawyer isn't part of a firm, he's his own business. But thanks - I will at the very least write to the bar. This guy is so awful. The nightmare of this bankruptcy never ends